TEA Docket No



TEA Docket No. 042-LH-0108

Mercedes Independent § Before

School District. Petitioner §

§ Thomas Sullivan

Vs. §

§ Certified Hearing Examiner

§

Ricardo Atkinson, Respondent § Texas Education Agency

RECOMMENDATION OF THE CERTIFIED HEARING EXAMINER

Statement of the Case

The Mercedes Independent School District, Petitioner, has proposed the termination of Principal, Ricardo Atkinson, pursuant to Texas Education Code Section 21.211 (a) (1) and Board Policy BJA (Local).

Hearing began on March 3, 2008 and continued until March 7, 2008 in the Administration Building of the Mercedes Independent School District located at 206 East 6th Street, Mercedes, Texas 78570-0419 before Thomas Sullivan, Certified Hearing Examiner. The Court Reporter was Ms. Maureen Stingley, Certified Court Reporter No. 691 of Bryant Stingley, Inc., 2010 East Harrison, Harlingen, Texas, 78550, (tel: 956-428-0755; fax: 956-428-7133)

Petitioner, Mercedes Independent School District, appeared by and through its Superintendent, Walter N. Watson, and its Counsel, Kevin O’Hanlon and Leslie McCollom, Attorneys at Law of the Law Firm of O’ Hanlon, McCollom and Demerath of Austin, Texas.

Respondent, Ricardo Atkinson, appeared in person and by and through his Attorneys of Record, Ruben R. Peña and Patricia Garza from the Law Offices of Ruben R. Peña P.C. of Brownsville, Texas.

All parties announced ready. There being no written request by the Respondent for an opening hearing, the hearing was closed.

Petitioner, Mercedes Independent School District, (Hereinafter the “District”) contends that it has good cause to terminate the term contract of the Respondent.

Respondent, Ricardo Atkinson, appealed the decision of the Petitioner to terminate his term contract as a principal. Respondent timely filed a written request for an appeal before a Texas Education Agency Certified Hearing Examiner.

Standard of Review

The standard of review is “substantial evidence”. See Section 21.307 (a) and (f). Also see Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559, 562 (Tex. 2000); McGilvray v. Moses, 8 S.W.3d 761, 763 (Tex.App.---Fort Worth 1999, pet. denied); Moses v. Fort Worth Indep. Sch. Dist., 977 S.W.2d 851, 853 (Tex.App.---Fort Worth 1998, no pet.). 1999, pet. denied); Moses v. Fort Worth Indep. Sch. Dist., 977 S.W.2d 851, 853 (Tex.App.---Fort Worth 1998, no pet.).

Findings of Fact

After due consideration of the record, the matters officially noted, the testimony of the witnesses and the exhibits presented in evidence, the following findings of fact have been proven:

1. The Respondent, Ricardo Atkinson, at all time relevant to the issues in this case is (was) an employee of the Petitioner, Mercedes Independent School District, subject to a one year term contract, dated July 31, 2006. (See Petitioner Exhibit 24) (Hereinafter referred to as “P-Ex-__” or Respondent Exhibit as “R-Ex”) and renewed on June 16, 2007 (See P-Ex. 29-A).

2. Pursuant to the above identified one-year contract and its extension and in accordance with Chapter 21, Subchapters E and F, the Board of Trustees of the Mercedes Independent School District had the authority to terminate the contract, discharge or suspend Mr. Ricardo Atkinson for good cause, as determined by the Board of Trustees. (See P-Exs 24 and 29 (a)).

3. On or about January 7, 2008, Respondent, Ricardo Atkinson, was provided notice of proposed termination of contract. (See P-Ex. 1). Grounds included insubordination, financial mismanagement, inadequate personnel management, inadequate student management, inappropriate parental interactions, “other acts of misrepresentation”, and failure to meet the generally accepted standards of conduct expected of a campus principal employed by Mercedes, ISD.

4. Beginning on or about July 2, 2007, when Superintendent Watson began in his role as “interim superintendent”, he noticed Respondent had assigned an employee whose salary was federally funded (Career and Technology Education, hereinafter referred to as “CATE”) being used as a receptionist, a position funded by the District in violation of the regulations of the federal program. This matter was brought to Respondent’s attention but the Respondent failed to comply. The matter continued until Respondent was relieved of his responsibilities on October 1, 2008. See Transcription Record Walter N. Watson Volume I, pages 39-40. Also see P-Ex-1 b). Also see TR Leal Volume I, pages 172-177. (Hereinafter cited as “TR Witness’s name Volume __ page ___ line___.”

5. Respondent was advised the CATE employee could be used if only a budget change was made permitting him to pay the employee out of district funds rather than federal funds. He failed to comply. TR Watson, Volume I, page 40, line 20 to page 42, line 11 and pages 152-153. P-Exs. 25, 26, and 27. Also see TR Leal, Volume 1, page 203 to 205; F. Flores Volume II, pages 579-591.

6. The Performance, Appraisal Evaluation of Teachers (Hereinafter referred to as “PDAS”) is required annually both by statute and local board policy. See P-Exs. 13 and 14 and TR Watson, Volume I, page 45 line 25 to page 46, line 24.

7. It is the responsibility of all principals to perform the Performance, Appraisal Evaluation of Teachers (Hereinafter referred to as “PDAS”). See P-Ex-13. Also see TR Watson, Volume I, page 46, line 25 to page 47, line 7.

8. Respondent failed to complete these evaluations timely. TR Watson, Volume I, page 45 lines 9-13. Also see TR Rocha Volume II, page 521 lines 4-8

9. At the beginning of the 2007-2008 school year, Assistant Superintendent Rafael Leal (a/k/a Ralph Leal), gave the Respondent several directives to establish an In-School Suspension program (ISS program). TR Leal, Volume I pages 168-172 and 207-209. Also see TR Davis Volume III pages 409-410 and TR Reyes Volume III, pages 616-617.

10. These directives were acknowledged by the Respondent. TR Atkinson Volume V page 1293.

11. This directive was part of the oral discussions with the Respondent during the development of the Respondent’s “growth plan” but was not reduced to writing. See P-Ex. 43. Also see TR Watson Volume I pages 62 to70 and TR Leal Volume I, pages 171 to 172.

12. The lack of classroom space caused by the water intrusion and mold discovered in August, 2007 may have excused Respondent’s failure to comply with these directives, but thirteen classrooms came back on line beginning on September 10, 2008 thereby eliminating this as a cause for failure to institute the ISS program. P-Ex. 41 and 42.

13. Mr. Juan Gama, the district construction and facility manager (TR Gama Volume IV page 833 lines 14-15) advised Mr. Leal as each classroom was approved by the remediation consultants for use. Also see R-Exs 41, 42, and 43.

14. In light of the chaos created by the closure of multiple classrooms, it is not reasonable that the principal of the facility would not know or demand to know as each classroom came back into service. Nevertheless, Respondent asserted no one ever advised him of these matters. TR Atkinson Volume V page 1175 to page 1176 line 6.

15. Respondent again claimed (TR Atkinson Volume V pages 1297 line 21 to page 1298 line 20) he was not told rooms were back in service and that the hallways were not accessible. It is not reasonable to believe the hallways in the CT building were not accessible since approximately seven of the fifteen classrooms in the CT building were being used despite the presence of mold in the other eight. See R-Exs. 17, 41, 42, and 43. Also see TR Gama Volume IV page 841 line 7 to page 842 line 11.

16. Respondent was not excused from compliance with the directive to institute the ISS program. TR Hepworth Volume III pages 771-774.

17. Interim principal, Irma Davis, established the ISS program within one week of her appointment on October 1. 2007. TR Davis Volume II, page 381 line 25 to page 382 line 4.

18. As a result of the Respondent’s failure to institute an in-school suspension program, 117 children were suspended from school entirely. TR Watson Volume I page 64 lines 8-19.

19. It is reasonable to believe that some of the suspended students would have benefited from an in-school suspension program rather than outright suspension.

20. This large number of out of school suspensions was the direct result of Respondent’s failure to institute the ISS program. TR Watson Volume I pages 62-70 and page 80. Also see TR Leal Volume I pages 195-196 and pages 218 to 220.

21. At the end of the 2006-2007, there were twenty vacancies at the Mercedes High school. TR Watson Volume I page 55 line 19 to 24. Also see Exhibit 32.

22. This number was considered to be high. This number was attributable to low faculty morale occasioned by the Respondent. TR Guillen Volume II page 524 lines 3-8.

23. On or about September 13, 2007, Respondent was directed in writing to insure all CATE (supra at # 4) computers were being used by CATE teachers and CATE students. Nevertheless, Respondent directed Antonia Flores (a/k/a Toni Flores) to place three CATE computers in the Distant Learning Laboratory. TR Davis Volume II, pages 387-390 and TR A. Flores Volume II pages 580-597.

24. Use of federally funded computers (CATE) for purposes other than those established by the grant is improper. See TR Watson Volume I, pages 39-40. Also see P-Ex-1 b). Also see TR Leal Volume I, pages 172-177.

25. On October 1, 2008, Superintendent Watson directed Respondent to return all district computer equipment by the end of the week. See P-Ex. 47 and TR Watson Volume I, pages 159-160. Respondent did not fully comply with this demand until several weeks later. TR Watson Volume I page 161.

26. In the fall of 2006, Juanita Mariscal (a/k/a Jayne Mariscal and Janie Mariscal) described an incident in which Respondent embraced and kissed Ms. Mariscal on the cheek. TR Mariscal Volume III, page 633 line 5 to 22. Ms. Mariscal protested vehemently. TR Mariscal Volume III page 633 lines 21-22.

27. Thereafter, knowing Ms. Mariscal’s reaction and during a discussion about complaints made by some teachers, the Respondent followed Ms. Mariscal out to the parking lot despite her protestations and held her car door open preventing her from driving off. TR Mariscal Volume III page 635 line 2 to page 637 line 23. In the course of this sequence, the Respondent was quoted as saying: “You would think I had asked you for a sexual favor”. TR Mariscal Volume III, page 636 line 21-23. Also see P-Ex. 44.

28. Ms. Mariscal notified her supervisors but did not file a formal complaint. TR Mariscal Volume III, page 637 lines 24 to page 634 line 3.

29. Through out this exchange, Ms. Mariscal felt Respondent was acting like a stalker. TR Mariscal Volume III page 637 lines 4 to 8.

30. The Respondent’s conduct with Ms. Mariscal was inappropriate and unprofessional.

31. Respondent was to have been attending an in-service Administrator’s Academy from August 6 to August 9, 2007. (P Ex. 34). On August 6, Respondent signed himself in as having attended on August 8, a matter which Ms. Summy had to correct. TR Summy Volume I page 238 line 23 to page 239 line 5.

32. Respondent called in sick on August 9, 2007 but the real reason was to work on the master plan. TR Summy Volume I, page 239 lines 24 to page 240 line 8.

33. District policies and regulations are incorporated into the employment contract. Wilson v Troup ISD, TEA Docket No. 77-R-55 (Tex. Comm’r Educ., 1978); Mandel v Houston ISD TEA Docket No. 116-R2-484 (Tex. Comm’r Educ., 1984).

34. Respondent failed to comply with Mercedes ISD’s Board policy CDF (Local), DH (Local) and DH (Exhibit) requiring checks drawn on the high school’s bank account to have two signatures. TR Watson Volume I pages 89, 114, 117-118, 119-120; TR Leal Volume I pages 183-184; TR Huerta Volume III pages 660-661; TR Garcia Volume III pages 673-674; P-Exs. 6, 9, 10, 57, 71 (page 5 of Ex. 71), and 72 (page 2 of Ex. 72).

35. The Respondent was unaware of the policy as set out in P-Ex 6. TR Atkinson Volume V page 1278 lines 14 to 25.

36. Accountant, Victor Barron, conducted an independent audit on February 20, 2008. See P-Ex. 72 consisting of multiple pages. Mr. Barron found, inter alia, that:

a. Check number 4804 was hand written by the Respondent in the amount of $473.80 made payable to the Respondent and for which there was neither supporting documentation nor any second signature. Respondent acknowledged this omission. TR Atkinson Volume V page 1263 lines 16 -20. Also see P-Ex. 57.

b. Check number 4818 was hand written by the Respondent in the amount of $113.71 made payable to the Hobby Lobby for which there is no supporting documentation. Respondent acknowledged this omission. TR Atkinson Volume V page 1193 lines 2-15.

c. Check number 4728 made payable to Respondent in the amount of $467.25 but which has no supporting documentation.

d. Check number 4783 also made payable to Respondent and for which there is no supporting documentation.

e. Check number 4028, dated April 11, 2007 included various charges totaling $277.75 (Exhibits 2 and 3 within Mr. Barron’s report). However, Check number 4963, also payable to Respondent, reflects that an amount of $65.00 was paid twice without reimbursement. Also see TR Hepworth Volume III page 721 lines 14 to page 722 lines 5.

f. School districts are exempt from sales tax. However, the Respondent paid sales tax on school related supplies to Wal-Mart totaling $18.27. Respondent reimbursed himself for this sales tax. (Exhibits 6 and 7 within Mr. Barron’s report).

g. Check number 3392 dated October 5, 2006 made payable to Sam’s Club (exhibits 8 and 9 in Mr. Barron’s report) in the amount of $350.00. However, it reflects that changed in the amount of $92.37 was received without any indication to whom the cash back was paid.

37. Board policy CFD (local) P-Ex. 6 requires approval of the principal’s immediate supervisor or designee when reimbursement checks are made payable. No such approval was received for check numbers 4808, 4728, and 4783. These reimbursement checks total $ 1336.41.

38. Respondent claimed a general oral approval which either superseded or supplanted the District policy which required any reimbursement from an administrator to be approved by that administrator’s supervisor. TR Atkinson Volume V page 1267 line 2 to page 1269 line 11.

39. The Respondent was not troubled by the notion of approving a reimbursement check to himself with his own hand written receipts because that was the way it was done in Dallas ISD. TR Atkinson Volume V page 1270 lines 7-10.

40. The policies at Dallas ISD are identical to those at Mercedes. TR Atkinson Volume V page 1274. Also see P-Ex. 73.

41. The Respondent was not aware of the personnel employment policies at Mercedes ISD despite the fact that knowledge of such policies is part of his job description. TR Atkinson Volume V page 1282 line 22 page 1284 line 5.

42. Respondent’s Exhibit number 9 indicates that the Respondent approved a payment to himself in the amount of $473.80. This exhibit is a four page document which, by the testimony of the Respondent (TR Atkinson Volume V page 1265 lines 22 to 24), he found after his dismissal. However, the first page of the exhibit shows no approval by his immediate supervisor as required by Board policy nor does the check show a second signature, also required by the Board policy (P-Ex. 6). Further, the check is dated April 16, 2007 but one of the receipts is dated April 17, 2007. Therefore, the Respondent approved a check written to him, hand wrote it himself and, even after locating some documentation which was not discoverable by neither Mr. Barron nor Ms. Huerta (the bookkeeper), contained a receipt itself hand written by the Respondent one day after the check was written.

43. In March 2007, a discussion was had regarding donation by the high school to a war memorial honoring the service of soldiers, sailors, and Marines from the City of Mercedes, most of who attended the District’s schools. The project was honorable, but the payment in the amount of $1500.00 was made from a high school club’s account without the expressed consent of the club sponsor, Alicia Vasquez. TR Vasquez Volume II page 435 lines 8-19. This expenditure required approval of the sponsor and/or the students. See P-Ex. 6.

44. Ms. Vasquez learned of the expenditure when she was notified by Ms. Huerta, the bookkeeper that the account, for which Ms. Vasquez was responsible, was overdrawn. TR Vasquez Volume II, page 437 lines 6 to 24.

45. Ms. Vasquez remembered discussions surrounding the project but specifically denied approving the expenditure. She confronted the Respondent after the expenditure was made. TR Vasquez Volume II page 438 line 23 to page 439 line 21.

46. The Respondent failed to adequately supervise the financial operations of the high school bank accounts:

a. He allowed the account to be used to pay sales taxes from which the school was exempt;

b. He failed to secure his supervisor’s approval for reimbursements made to him;

c. He failed to secure a second signature on each check;

d. He failed to provide adequate documentation for the use of funds.

e. He failed to secure sponsor’s approval for the use of student funds.

f. He approved the “cash back” in the amount of $92.00 to some unknown person for some unknown purpose.

g. He handwrote re-imbursement checks to himself without adequate documentation, without his supervisor’s approval, and without a second payor’s signature.

h. He failed to provide adequate explanation for the violations of these policies and in some instances, was unaware of the policies.

47. A principal is charged with the notice provisions of his contract. Mabrey v Grand Prairie, ISD, TEA No. 209-R1a-882. The District’s policies are incorporated into the employment contract, Wilson v Troup ISD (supra). The Respondent has the responsibility to discovery and complies with the District’s policies and his lack of knowledge is not a sufficient excuse. While there is no assertion of theft or fraud, the Respondent is a fiduciary of public funds and his repeated failure to acquaint himself with the District’s policies indicates a level of unprofessional conduct, lack of intellectual curiosity, and callous disregard for the Board’s leadership.

Discussion of the Testimony

Allegations Not Supported by the Evidence

The Mercedes Independent School District leveled multiple allegations against Mr. Atkinson as set out in P-Ex. 1. Some of these allegations were important, especially to the people involved, but do not rise to the level of “good cause” for termination. These included disputed morale issues among the faculty and staff, a bewilderingly conflicted account of an encounter with a student at a pep rally, and controverted versions of how, why, when, and with what internal paperwork, two students were sent to the alternative campus for disciplinary purposes.

Additionally, the Respondent’s failure to timely produce the master plan can be excused by a variety of explanations. Firstly, the plan is generally a work in progress and is not commonly in final form until August. Secondly, the water intrusion and mold issues complicated the finalization of the master plan and had faculty and staff scrambling to make accommodations.

Further, there was significant conflicting testimony regarding morale among the faculty and staff. Apparently, Mr. Atkinson is a strong leader and, it is said, a new broom sweeps clean. He had his share of enemies and of friends. For every incident in which he was accused of being rude, course, or vulgar, there were denials. The same holds true for his tardiness. It appears no one was in a position to monitor his comings and goings, consequently these portions of the allegations were not supported by credible evidence.

Allegations Supported by the Evidence.

All that said, it appears that the Respondent’s repeated failures to comply with requests and orders to establish an In-School Suspension program significantly impacted the education mandate of the school. Children suspended out of school are not receiving instruction nor is the school district being funded while they are out. The in-school suspension program is an essential tool in the hands of the educators and his failure to institute one is exacerbated by his repeated refusals to comply with his supervisors’ instructions.

The Respondent’s conduct with Ms. Mariscal is no small matter. “No.” means “No.”. Ms. Mariscal made her reaction and objection loudly and clearly. She may have set her boundaries where other women might not, but she is entitled to those boundaries. The Respondent violated them disregarding not her “feelings” but her sense of propriety, professionalism, and dignity.

The Respondent’s repeated violations of the District’s financial policies are legion. But his disregard to even acquaint himself with the policies is more distressing. He is not even troubled by the prospect of having written a check by him to himself, drawn on public funds, without a supervisor’s approval, for disputable matters, substantiated by little or no documentation, and in at least one case, patently false. His conduct violated the very purpose for which the Board of Trustees instituted the policies as a system of “checks and balances”. Nor are these policies curious to the public sphere. Anyone, anywhere, knows or should know these or similar rules exist.

The Respondent’s lack of leadership was reflected in a higher than average teacher turnover, wholesale changes without department input and without regard for the logistical demands caused by the water and mold. The principal cannot rule by edict.

Significant Harm

Significant harm has been found incases where only one incident occurs but the harm was egregious or violated moral standards. Guerra v San Diego ISD, TTEA Docket No. 147-R2-796 (m’r Educ., August 1996).

In the case presently before the Certified Hearing Examiner, repeated instances of insubordination, financial mismanagement, and ignorance of applicable District policies related to the use of school funds, and conscious disregard of those policies, and the purposeful inappropriate behavior with a teacher constitute significant harm.

Conclusions of Law

1. The Hearing Examiner has jurisdiction of this matter pursuant to Chapter 21, Subchapter F, specifically § 21.211 (a)(2) Texas Education Code.

2. Kinsey v Quinlan ISD 092-R2-598 (Comm’r Educ. July 1998) states in relevant part:

“An employee’s act constitutes good cause for discharge if it is inconsistent with the continued existence of the employer-employee relationship.”

3. Lee-Wright, Inc. v Hall, 840 SW2d 572, 580 (Tex.App – Houston [1st. Dist] 1992, no writ history, states in relevant part:

“ Good Cause is a high standard. An employee must not only fail to perform as an ordinary employee would, but the failure must be of a serious nature. There is good cause to terminate a contract if a teacher failed to perform as an ordinary employee would that his failing is of a serious nature.”

4. The statutory basis for termination of this contract is “good cause” which involves a failing that an ordinary prudent employee would avoid. The opportunity for remediation may be required in some instances where an employee is in need of guidance. However, remediation is not required in every case. Baker v Rice ISD, TEA Docket No. 227-R2-493 (m’r Educ., 1995). There is no right to remediation and it is not accorded because of prior meritorious service. Thacker v Lingleville ISD, TEA Docket No. 086-R2-498 (m’r Educ., 1998).

5. The combination of Mr. Atkinson’s refusal to follow specific and important directives from his superiors, his ignorance of the District’s financial policies, his violation of those policies, his inappropriate behavior with a teacher, his recalcitrant conduct in the application of federally funded regulations relating to employees and equipment constitutes good cause for the termination of his term contract.

RECOMMENDATION

After due consideration of the evidence and the matter noted above, the forgoing Findings of Fact and Conclusions of Law, in my capacity as the Certified Hearing Examiner, IT IS RECOMMENDED that the Mercedes Independent School District adopt the foregoing Findings of Fact and Conclusions of Law and enter an order consistent therewith.

Signed and Issued ___________________

___________________________

Thomas Sullivan

Certified Hearing Examiner

1002 East Taylor

Brownsville, Texas 78520

Tel: 956-546-3330

Fax: 956-504-5988

E-Mail: Tsullivan1@rgv.

Certificate of Service

I, the undersigned, certify that the foregoing Recommendation of the Certified Hearing Examiner was forwarded on the 18th day of March, 2008 all persons and parties listed below.

_____________________________

Thomas Sullivan

Mr. Ruben Pena

Plaza 700 Building

700 Paredes Ave., Suite103

Brownsville, Texas 78520 Regular mail and Facsimile 956.546.5778

Mr. Walter N. Watson

Superintendent, Mercedes ISD

206 East Sixth Street

Mercedes, Texas, 78570-0419 Regular mail and Facsimile 956.262.5535

Mr. Kevin O’Hanlon

Ms. Leslie McCollom

O’Hanlon & Associates

808 West Avenue

Austin, Texas 78701 Regular mail and Facsimile: 512.494.9919

Isabel Lozoria

Legal Assistant to Deputy General Counsel

Texas Education Agency

1701 North Congress Avenue

Austin, Texas 78701 Via E-mail Isabel.lozoria@TEA.state.tx.us and Facsimile: 512-475-3662

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